Ahmed v Alberta Health Services, 2015 ABQB 825

Court of Queen ’ s Bench of Alberta Citation: Ahmed v Alberta Health Services, 2015 ABQB 825 Date: 20151223 Docket: 1503 12921 Registry: Edmonton Karim Ahmed, Ameen & Ahmed Professional Corporation, Matin Arif Ahmed, Abdul M. Nasser Prof Corp, Abdul Nasser, Jaigirdar Medical Services Ltd., Shamsul Jaigirdar, Reza Khoshkish, Sultana Medical Inc, Sultana Begum, Syed Medical Inc, Syed Bilal Hussain Shah, Mohammed Feroz Professional Corporation, Dr.

Mohammad Feroz, Lilian Naguib, Kazi Parvez, Adel Labib, Abid Ahmed, Vesna Lalic, Rukhsana Ameen, (Deleted), Rubina Khan, Galaxy Medical Venture Corp, Hayam Farag, Katil & Iyer Medical Inc, Kashirathna Katil, Sawsan Mahmoud, Ahmed Darwish Hassan, Azra Kazmi, Musaab Ibrahim, Mei Luo Zhang, (Deleted), Noel Nisar, Peace Risar, (Deleted), (Deleted), Mohammed Omar Khudhur Al Baghdadi, also known as Mohammed Khudhur, (Deleted), 1557392 Alberta Ltd., and Dr.

Fouzia Qureshi Applicants - and - Alberta Health Services Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit

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Summary [1] The applicants, physicians who are international medical graduates, apply in special chambers for an interim interiminjunction to require Alberta Health Services to extend their working relationship with AHS until their application for an interiminjunction can be fully argued, which they hope will be in early 2016. The applicants’ existing working relationship is based onindividual contracts which characterize the applicants as independent contractors; those individual contracts all expire on December 31,2015.

The applicants have not fully developed the terms of the new working relationship which they propose; however, the terms wouldinclude: being paid for services on the current basis, abrogating the termination on notice provisions of the current contracts, and aguarantee of binding arbitration. [2] The application is denied. [3] There is no substantive difference between an interim injunction and an interlocutory injunction: Ontario Council ofHospital Unions.

In this decision, the expression “interim interim injunction” will be used throughout. [4] The appropriate analysis on an application for an interim, interim injunction is the same as that for an interim injunction, i.e.the tri-partite test referred to in RJR-MacDonald and the case law: Bar C Ranch and Cattle Co.

The difference between an applicationfor an interim injunction and for an interim interim injunction is, of course, that in the latter situation, a second application for an interiminjunction is authorized, which application will be based on expanded evidence. [5] The plaintiffs’ application is properly characterized as a request for a mandatory injunction: granting the injunction wouldnot merely require maintaining the status quo, but would, rather, require AHS to become bound by new contracts, on unknown termsdeveloped unilaterally by the plaintiffs, for an unknown period of time. [6] Because the applicants request a mandatory injunction, the first issue to be considered is whether the applicants have a“strong and clear” prima facie case, that is, a case “which is likely to succeed at trial”: Modry.

On this application, the applicants havenot demonstrated a strong prima facie case: they have not established that they are likely to succeed at trial in establishing that theirCharter right to associate has been breached. Indeed, on this application, they have not even demonstrated that they have tried toassociate for the purposes of bargaining. [7] The applicants state that they will suffer irreparable harm if the interim interim injunction is not granted.

They agree that themonetary effect of change from an independent contractor model to an employee model can be tracked and, if they are successful in theirinjunction application, they would recover any financial loss from AHS.

However, they state that their situation involves a breach of aCharter right, the constitutional right to freedom of association; it is the loss, or impingement, of their Charter right which creates theirreparable loss. [8] Under the Eldridge analysis, there is at least a serious argument to be made that the Charter applies to Alberta HealthServices in relation to money issues: AHS is funded entirely by government and therefore the quality of acts such as this one, having animportant financial component rather than a purely professional medical component, is determined by government.

Moreover, given theMinister of Health’s statutory right to issue mandatory “directives” to AHS, an argument can even be made that the quality of AHS as anactor is so controlled by government that it is an emanation of government. [9] Assuming, therefore, for the purposes of this application, that the Charter applies to this AHS decision, the court concludesthat there is no evidence of a Charter breach: Since the new AHS policy was announced in late 2012, AHS has not inhibited the right ofthese physicians to organize a professional association and to negotiate the terms of a new working relationship. [10] The balance of convenience does not favour the granting of an interim, interim injunction.

In the applicants’ favour is thepossibility that they may have a claim of breach of legitimate expectations: AHS did begin to negotiate with the Alberta MedicalAssociation on behalf of the clinical assistants, clinical surgical assistants and surgical assistants concerning a new working relationshipwith the applicants. However, at some point, the negotiations stopped; AHS may have led the applicants to believe that it would continueto negotiate with AMA on their behalf.

However, since the applicants have not included AMA in these proceedings, the court is leftwithout information about how, why and when AMA stopped representing the clinical assistants and clinical surgical assistants who arethe applicants herein. [11] In the respondents’ favour is the reluctance of any court to impose a contractual relationship, especially one with unknownterms, on parties. Moreover, in the circumstances here, imposing a set of new contracts on AHS would abrogate AHS’s managementrights to determine the modality of providing medical services.

Moreover, since the applicants are not an association, they do notrepresent all of the international medical graduates who are in a professional and contractual position similar to theirs; some of thoseinternational medical graduates may welcome the creation of an employee relationship with AHS with its attendant benefits, such aspension rights and the right to claim severance pay for dismissal without cause.

Finally, although there is not even a suggestion, muchless evidence, that the applicants are impecunious, they have not supplied an undertaking in damages. [12] Weighing each of the three foregoing areas of relevant consideration independently and cumulatively, the court concludes thatthis is not a situation in which fairness requires that it should exercise its discretion to grant an interim interim injunction: the applicantssuffer no discernible prejudice if it is refused, but AHS would suffer a clear prejudice if it were granted.

Cases and authority cited [13] By the Applicants: Elder Advocates of Alberta Society v Alberta, 2008 ABQB 490; Health Professions Act, RSA 2000, cH-7; Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982;

Schedule B to the Canada Act 1982 (UK), 1982, c11; RJR-MacDonald Inc. v Canada (Attorney General), [ (SCC), 1994] 1 SCR 311; Mosaic Potash EsterhazyLimited Partnership v Potash Corporation of Saskatchewan Inc., 2011 SKCA 120; Eco-Industrial Business Park Inc. v Alberta

Diluent Terminal Ltd, 2014 ABQB 302; Alberta Union of Provincial Employees v Alberta, 2014 ABQB 97; UAlberta Pro Life vUniversity of Alberta, 2015 ABQB 719; Trang v Alberta, 2001 ABQB 659, [2001] AJ No 1124; Health Services and Support -Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27; Mounted Police Association of Ontario v Canada(Attorney General), 2015 SCC 1; Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4; Sharpe, Robert J.

"Injunctionsand the Charter." Osgoode Hall Law Journal 22.3 (1984): 473-485; The Calgary Airport Authority v Canadian Centre for Bio-Ethical Reform, 2014 ABQB 493; Modry v Alberta Health Services, 2015 ABCA 328; Hardie v Summerland (District), (BC SC), 1985 24 DLR (4th) 257 (BCSC), 68 BCLR 244; Alberta Union of Provincial Employees v Alberta 2014 ABQB97; Hunter v Canada (Commissioner of Corrections) [1995] F.C.J.

No. 1605; University of Alberta v Alberta (Human RightsCommission) 1988 ABQB ; Greater Vancouver Transportation Authority v Canadian Federal of Students – British ColumbiaComponent 2009 SCC 31; Regional Health Authorities Act RSA 2000, c.

R-10, [14] By the Respondent: RJR MacDonald Inc. v Canada, (SCC), [1994] 1 SCR 311; Bar C Ranch and CattleCompany Ltd. v Red Rock Sawmills, 2004 ABCA 113; P(M) (Next Friend of) v Chinook Regional Health Authority, 2004 ABQB 10;Micronet Information Systems Ltd v Hewlett-Packard (Canada) Ltd, 1999 CarswellNS 299 (NS SC); Medical Laboratory ConsultantsInc. v Calgary Health Region, 2005 ABCA 97; Nexxtep Resources Ltd. v Talisman Energy Inc. 2007 ABQB 788; Catalyst CanadaServices LP v Catalyst Chargers Inc. 2013 ABQB 73; Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982,being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 32; Regional Health Authorities Act, RSA 2000, c R-10, s 5; FoothillsProvincial General Hospital Board v UNA, Local 115, (AB GAA), 1985 CarswellAlta 1056 at para 3(f), 23 LAC(3d) 42; Stoffman v Vancouver General Hospital, (SCC), [1990] 3 SCR 483; Health Services and Support - FacilitiesSubsector Bargaining Assn v British Columbia, 2007 SCC 27; Royal Canadian Mounted Police v Canada (Attorney General), 2015SCC 2; Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1; Soost v Merrill Lynch Canada Inc, 2010ABCA 251; Grey v Edmonton (City of), 2005 ABQB 231; Modry v Alberta Health Services, 2015 ABCA 265; Marks v Ottawa (City),2007 CarswellOnt 4026; Lac la Biche (Town) v Alberta, 1993 ABCA 104 , [1993] AJ No. 263, 135 AR 352; InternationalPediatric Products Ltd v Lambert, 1968 CarswellBC 107; Lubicon Lake Indian Bank v Norcen Energy Resources Ltd, 1985 ABCA12; Noriega v College of Physicians and Surgeons of Ontario, 2015 CarswellOnt 16128 (ONSC); John Doe v Ontario, (2007) 162CRR (2d) 186 (ONSC); Alberta Union of Provincial Employees v Alberta, 2014 ABQB 97. [15] By the court: Ontario Council of Hospital Unions v Ontario (Minister of Health and Long Term Care) (2007) (ON SCDC), 85 O.R. (3d) 55; Public Service Employee Relations Act R.S.A. 2000, c.

P-43, s. 13; Lobo v CarletonUniversity 2012 ONCA 498; Prigden v University of Calgary 2012 ABCA 139. Appendix A: Typical form of medical services agreement signed by each of the applicants with AHS Appendix B: Typical form of notice that independent contractor regime would be replaced by employment regime Appendix C: Letter of June 23, 2015 concerning elevation of discussions with AMA Appendix D: Extract from questioning of representative of AHS with reference to the lawsuit Appendix E: Confirmation that medical services agreement would terminate on December 31, 2015 Appendix F: Typical offer of employment 1.

Background [16] Each of the 26 individuals named as an applicant is an international medical graduate who is not eligible for independentlicensure, i.e. each has: - obtained a medical degree from schools located outside of Canada, the United States of America, the United Kingdom, Irelandand Australia; - been licenced by the Alberta College of Physicians and Surgeons as a Clinical Assistant or Clinical Surgical Assistant on theLimited Practice Register pursuant to the Health Professions Act; - a requirement of supervision imposed on their practice; - membership in the Alberta Medical Association; - a practice in an acute care facility in the Edmonton zone.

These physicians work in large urban hospitals; it is not clear from thematerials whether all such hospitals are, in fact, acute care facilities. The corporations named are professional corporations owned fully or jointly by one of the individual physicians. None of the plaintiffsare Surgical Assistants. The CAs, CSAs and SAs constitute a

section of the AMA. [17] In addition to the 26 applicants, 4 physicians were plaintiffs initially, but have since withdrawn from the proceedings.

Inaddition to these 30 physicians, there are possibly 10 additional physicians who have the same general profile as these plaintiffs, i.e. theyare international medical graduates who are working as CAs or CSAs in the Edmonton zone, but who were never part of the plaintiffgroup. [18] Each of the plaintiffs signed a medical services agreement with AHS in the general format set out in Appendix A; althoughthe agreements start and finish as of different dates, the provisions relating to the way in which fees will be claimed, the status ofindependent contractor, and the termination of the agreement are standard.

Although the specific requirements of service may differ, thegeneral sense of the agreements is the same, i.e. the applicants are required to provide professional services at a high level.

[ 19 ] In 2012, AHS let all CAs and CSAs know that it had decided to change its working relationship with the international medical graduates in the Edmonton zone by changing their independent contractor status to that of employees. By notice in writing dated on or about January 22, 2014, each of the applicants was advised by AHS that all contracts hiring CAs CSAs or SAs as independent contractors would be terminated and individuals holding those contracts would be transitioned to a new employment model: see Appendix B for typical notice of the impending change.

From that time on, AHS sent successive letters to the plaintiffs extending the date on which their contracts as independent contractors would terminate. [ 20 ] International medical graduates who are working as CAs and CSAs in the Calgary and Red Deer zones are already employees and have been for some time. [ 21 ] The plaintiffs assert that, as employees, they would be placed on a salary grid set by AHS, their hours of work would be limited to 50 hours a week, they would not be paid for overtime hours, and, fee for service billings earned by them would flow from Alberta Health to AHS and would not be paid to them.

They expect that their income will therefore be reduced.

They acknowledge that, under the employee model, they would receive benefits such as pension benefits, life insurance and long term disability benefits, health care benefits including dental plan and, of course, the right of all employees not to be terminated without appropriate notice, except for cause. [ 22 ] In mid-July, 2014, AMA advised AHS that the AMA: has been authorized by the clinical/surgical assistants in Alberta to represent them in all discussions and formal negotiations. . . the representation applies to all retained clinical/surgical assistants in Alberta, be they independent contractors or employees. . . .

We are confident that our discussions will lead to a fair and equitable contract with the end result being continued quality care for Albertans. [ 23 ] The response from AHS included the following: AHS has always been prepared to recognize the AMA’s right to represent Alberta physicians who are independent contractors, provided they have requested the AMA to represent them in their negotiations with AHS. . . . Please provide AHS with the names of these physicians. . . . The AMA’s representation rights do not extend to AHS physician employees. . .

Physicians who have entered into employment relationships with AHS are classified as Management and Out of Scope (MOOS) employees. . . .

This distinction in terms of representation rights for independent contractors and employees has always been recognized the AMA. [ 24 ] On July 22, 2014, then Minister of Health, the Honourable Fred Horne convened a meeting of the representatives of the CAs and CSAs, AHS and AMA and directed that the parties engage in meaningful and good faith negotiations. [ 25 ] On July 31, 2014, AMA then replied to AHS along these lines: Clearly the surgical/clinical assistants on employment contracts do not fall into the category of unionized employees and therefore fall into AHS’ category of MOOS employees.

However, it does not necessarily follow from the drawing of this distinction that MOOS employees are not entitled to any representation in negotiations with AHS. Indeed, our advice is that any group of individuals in Canada is entitled to the right to associate and to seek representation of that association in any negotiations. This is a freedom enshrined in Canada’s Charter of Rights and Freedoms.

If there was any subsequent exchange of correspondence on this topic, it has not been produced. [ 26 ] In August, 2014, a series of meetings commenced between AHS and AMA; these meetings ended in early 2015. [ 27 ] On June 23, 2015, AHS advised that CA and CSA negotiations have “been elevated to discussions that are currently occurring with AMA”: see Appendix C. [ 28 ] Over the course of negotiations, i.e. from November, 2012 to February, 2015, AHS materially increased the salary offered to a CSA with five years’ experience and changed the maximum number of working hours per week. [ 29 ] The statement of claim herein was filed and served on August 31, 2015.

When questioned about the status of CA and CSA negotiations, the representative of AHS referred to the initiation of the lawsuit: see Appendix D. [ 30 ] The applicants state that, throughout, AHS has refused to submit to binding arbitration in negotiations with the CAs and CSAs and has insisted on unilaterally setting the terms of employment of the CAs and CSAs. [ 31 ] On September 28, 2015, AHS wrote to each of the applicants to confirm that their medical services agreement would end on December 31, 2015, that their jobs would be filled by way of open competition, and that they were invited to apply.

A copy of the standard form of notification is attached as Appendix E. Twenty-one of the applicants applied for a position, all who applied were offered positions and, of those, 20 have already accepted positions. The applicants were given two business days from the date of the offer to accept a position; the standard form of offer of employment is attached as Appendix F.

On November 30, 2015, the applicants asked AHS for an extension of the deadline for acceptance of employment until after the application for an interim interim injunction had been heard and adjudicated upon; on December 1, the application to extend the deadline was declined by AHS. [ 32 ] The parties do not have a date scheduled for the hearing of the interim application for an injunction; in part, they are not certain when they will have the additional evidence which they intend to advance on that application and, in part, the court would likely have to make special arrangements for such a hearing as ordinary half-day special chambers applications are currently being scheduled for mid-June 2016. [ 33 ]

Section 2(

d) of the Charter of Rights and Freedoms states: 2. Everyone has the following fundamental freedoms:

. . .

d) freedom of association. 2. The test for an interim interim injunction is the same as that for an interim injunction [34] In this decision, I have referred throughout to an “interim interim” injunction; that is a term which has been used in the caselaw and which might be somewhat more intelligible to the litigants than the phrase “interim interlocutory” injunction. As to thedistinction between those terms, Ferrier J. said the following in Ontario Council of Hospital Unions: [60] In Century Engineering Co. Ltd. v. Greto, (ON SC), [1961] O.R. 85, [1961] O.J.

No. 581 (H.C.J.), at p. 90 O.R.,McRuer C.J.H.C. addressed the difference between an "interim" injunction and an "interlocutory" injunction: The authorities clearly indicate that the word "interim" in the legal sense has a well-established usage. It connotates a definite period oftime with a fixed beginning and ending. It may well be that the words "interim" and "interlocutory" are used interchangeably but I do notthink that they are strictly interchangeable.

The term "interlocutory injunction" comprehends any order for an injunction made before thefinal disposition of the case. [61] Therefore, an injunction that lasts until a fixed date is an "interim" injunction, and an injunction that lasts until the final dispositionof a trial is an "interlocutory" injunction. This same distinction was adopted in Solomon v. Solomon, [1991] O.J. No. 265 (Gen. Div.), atp. 4 (cited to QL). However, the Divisional Court has concluded that there is no substantive legal distinction between an interim orinterlocutory injunction since the same legal test set out in RJR - MacDonald Inc. v.

Canada (Attorney General),(SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17 applies: see Kanda Tsushin Kogyo Co. v. Coveley, [1997] O.J. No. 56, 96 O.A.C. 324(Div. Ct.), at para. 7; Dempster v. Mutual Life of Canada (2001), (ON SCDC), 55 O.R. (3d) 409, [2001] O.J. No.3336 (Div. Ct.), at para. 19. (Emphasis added) [35] Our Court of Appeal established the test for an interim interim injunction in Bar C Ranch and Cattle Co.: 11 The parties all agree that the correct test to be applied in deciding whether to grant this interim, interim relief is the AmericanCyanamid Co. v.

Ethicon Ltd., [1975] A.C. 396, [1975] 1 All E.R. 504 tripartite test as modified and adopted by the Supreme Court inR.J.R. - Macdonald v. Canada (AG), (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17. The three steps of that test are:

(1) Is there an arguable issue to be tried?

(2) Has the plaintiff demonstrated that it would suffer a substantial risk of irreparable harm in the period leading up to the trial, or in thiscase, leading up to the special chambers application, if the injunction were not granted?

(3) Which party does the balance of convenience favour? [36] The court expanded somewhat on the position at the interim interim stage as follows: What needed to occur was an evaluation of the facts and an application of the tripartite test, having regard to the short time-frameinvolved until the hearing of the special chambers application. [37] Two factors of note are important here: first, the contracts of the applicants expire on December 31, 2015 and a specialchambers hearing of the application for an interlocutory injunction cannot be heard before then.

Second, the parties do not have a date in2016 on which their application for an interim or interlocutory injunction can be heard; therefore, the length of time during which aninterim interim injunction might be in force cannot be estimated. These factors will potentially be taken into account at the balance ofconvenience stage of the analysis. 3.

The plaintiffs have not established a strong and clear prima facie case [38] Although the applicants have characterized their application as one for a prohibitory injunction rather than a mandatory one, itis clear that the proper characterization of their application is for a mandatory injunction: they are asking for the creation of a newworking relationship since the current relationship terminates on December 31, 2015. [39] Where the injunction applied for is a mandatory injunction rather than a prohibitory one, the first analysis which must beundertaken is whether the applicants have met the higher hurdle of establishing that they have a case which is likely to succeed at trial,i.e. a strong and clear prima facie case (Modry) rather than the low hurdle of merely proving that there is a serious issue to be tried.

Thismakes sense, of course, since the applicants for a mandatory injunction are essentially asking for the court to award them the remedywhich they seek before their case is heard; they are not asking for the status quo to be continued, they are asking for a new legalrelationship. [40] While it is patently true that, as of January 1, 2016, those applicants who have accepted an AHS offer of employment will beemployees and have the clear right to associate for the purpose of bargaining on working conditions, those rights do not obviously existright now: restraint of trade considerations may exist outside the employment/trade union or association model.

As to the situation inapproximately one week’s time, there is no evidence on this application that the plaintiffs have taken the necessary steps to have theirassociation/bargaining rights determined. The plaintiffs have not obtained rulings from the Labour Relations Board concerning anyaspect of their right to organize. For example, in order to resolve the apparent contradiction in terms between being, on the one hand,independent contractors and, on the other employees, the applicants have not sought a determination from the Board concerning thenature of their working relationship with AHS.

In that context, I observe that section 13(1) of the Public Service Employee Relations Actmay come into play:

Certain professionals excluded 13(1) Those persons who are members of or training to become members of (

a) the medical profession, . . . and who practise their profession as a condition of employment, shall not be included in a bargaining unit or any other unit for collectivebargaining unless the Board directs that the members of the profession be included in the unit pursuant to subsection (2).

(2) The Board may direct that members or persons training to become members of a profession referred to in subsection (1) be includedin a bargaining unit or any other unit for collective bargaining if (

a) it is satisfied that the majority of the persons employed by an employer who are members or persons training to become members ofthe profession wish to be included in the unit, and (

b) it has allowed affected employers, bargaining agents and any other person or organization interested in the matter and whom theBoard agrees to hear to present any facts or arguments they feel are relevant.

(3) For the purpose of determining a majority under subsection (2), only those members or persons training to become members of theprofession who would not be excluded from a bargaining unit or any other unit for collective bargaining under section 12(1) are entitledto vote or otherwise express an opinion on the matter.

RSA 1980 cP-33 s22;1983 c96 s4 [41] Nor is it clear on this application who would be included in any “bargaining unit”: would it be all CAs and CSAs in theEdmonton zone, or perhaps all CAs, CSAs and SAs in the Edmonton zone in order to reflect the grouping of service providers created byAMA, or would it be all CAs and CSAs employed by AHS who are not employees? [42] Once a bargaining unit is recognized, then there must be a formalized vote of the members of that unit about whether theywish to associate to bargain in relation to working conditions.

There is no evidence on this application of the right of these plaintiffs tospeak on behalf of all members of a bargaining unit. It may be that more members of a designated bargaining unit would prefer to havethe security benefits of employment rather than the potential less secure status of being an independent contractor. Not every attempt toassociate to form a bargaining union or association is successful. Labour legislation establishes the procedures which must be undertakenby those who wish to associate to bargain.

On this application, there is no evidence of any efforts made by these 26 applicants to createan association, be it a union or a professional association. [43] Nor is it clear on this application that CAs and CSAs would be considered as providing "essential services" in the sense thatthey would be prevented from strike action. Therefore, there is no evidence whatever that these applicants have a right to bindingarbitration.

In this context, I observe that in its recent Saskatchewan Federation of Labour decision, the Supreme Court of Canada over-ruled its previous decision in Reference re Public Service Employee Relations Act (Alta.) (SCC), [1987] 1 S.C.R. 313;this change of direction may have implications for the right to strike of persons providing services of the same type as those provided bythe applicants. [44] In

summary, on this application, because they have not demonstrated that they have taken steps to associate, the plaintiffshave not established that they are likely to succeed at trial in establishing that their Charter right to associate has been breached. 4.

The plaintiffs have not established irreparable harm as a result of a breach of their Charter rights [45] The plaintiffs acknowledge that, to the extent that an employee model of working relationship will pay them less than anindependent contractor model, each plaintiff can easily calculate what their financial loss will be and AHS is in a financial position tocompensate them for their losses should the eventual court decision be in the applicants’ favour. [46] The plaintiffs argue, instead, that their constitutional rights have been breached by AHS and that the only way in which theycan obtain redress for the breach of their Charter right is through an injunction. [47] AHS responds, first, that the Charter does not apply to it since it is not a government agency.

I will then turn to that issue.

a) For the purposes of this application, the Charter applies to Alberta Health Services: decisions concerning modalities ofproviding medical services are not professional medical decisions so much as financial decisions [48] AHS strongly argues that it is not subject to the Charter because it is autonomous and is not an emanation of government:Stoffman. [49] However, that case emphasizes that “daily or routine” aspects of a hospital’s operation are typically not subject to governmentcontrol. That is doubtless correct.

However, using the Eldridge analysis, where, as here, a change in the method of providing medicalservices which has important financial consequences, an argument can be made that there is a shift of characterization of the quality ofthe decision-making act from “routine” to “subject to government control”: AHS is completely dependent upon government for itsfinancing. [50] Moreover, there might even be an argument that AHS’s quality as an actor is that of a government emanation because of thestatutory right of the Minister of Health to issue mandatory directives to AHS. [51] We know from the case law that different appeal courts have considered similar types of activities as being both Charter

regulated and non-regulated: Lobo compared to Prigden . [ 52 ] While it is not appropriate to attempt to determine this issue on this application, for the purposes of this application, I am prepared to accept the applicants’ argument that the Charter applies to the AHS determination to move to an employee model from an independent contractor model. [ 53 ] AHS argues, next, that, even if the Charter does apply to it, there has been no breach of any Charter right.

b) The plaintiffs have not established a breach of their constitutional right to associate [ 54 ] The plaintiffs rely heavily on the approach taken by Prof. R.J. Sharpe, now Sharpe J.A. of the Ontario Court of Appeal, with respect to constitutional breaches being characterized as irreparable harm for the purposes of injunctions. However, the extract on which they rely is not of assistance to them: Damages may be appropriate to redress past transgressions, but in cases involving systematic, ongoing constitutional wrongs, damages seem particularly inapt.

If prohibitive or declaratory orders fail, the injunction would seem to be the only remedy at all possible. [ 55 ] In the situation here, the plaintiffs have not demonstrated any constitutional wrong, much less any such wrong which is systematic and ongoing. [ 56 ] The issue of the failure to have demonstrated any breach of the right to associate has been discussed in connection with the first issue and will not be repeated here. [ 57 ] It should be added, however, that the mere invocation of the breach of a Charter right does not necessarily create an irreparable harm.

The granting of an injunction is discretionary relief; although the discretion must be exercised judicially, the mere determination that a breach of a constitutional right has been established does not guarantee an injunction. Some breaches of constitutional rights cannot be compensated except by injunctions; the breach of the constitutional right to freedom of expression is one right that has typically attracted injunctive relief. However, the breaches of other constitutional rights can sometimes be adequately compensated by money awards; breaches of equality rights can sometimes be dealt with in that way.

In the circumstances here, it is not necessary to consider whether a breach of the right to associate can only, or best, be dealt with by way of injunction since the preliminary hurdle of determining that there is a breach of a Charter right has not been satisfied. 3. The balance of convenience does not favour the plaintiffs

a) Factors which favour the applicants [ 58 ] The only factor which might favour the plaintiffs is one which they have not developed on this application: the termination of negotiations between AHS and AMA concerning the ongoing working relationship between CAs and CSAs and AHS may have breached the plaintiffs’ legitimate expectations. It would, of course, be a preliminary requirement to establish that AHS was, in the circumstances here, operating as an emanation of government. In any event, however, the right to associate implies merely a right to bargain; it does not imply a right to reach an agreement.

Here, the evidence is that extensive negotiations did occur between AHS and AMA concerning the future working relationship of CAs and CSAs currently in independent contracting positions.

b) Factors which favour the respondent [ 59 ] The main factor which favours the respondent is, of course, that its freedom to contract would be abrogated. In law, a contract must have certainty; here, the plaintiffs do not specify the terms under which they propose a working relationship to be established. Although they want the pay provisions of the current contracts to continue once the contracts expire, they presumably do not want the provisions in the current contracts concerning the right to terminate the contract on 60 days’ notice to continue.

The plaintiffs have not given any indication of what their position is relative to AHS’ right under the current contracts to terminate for failure to meet professional standards as set out in the contracts.

The law does not impose contracts except in narrowly circumscribed situations, none of which apply here. [ 60 ] Also, on this application, no time limit has been established; AHS would be bound to some indeterminate obligations for an indeterminate period of time [ 61 ] Moreover, the overwhelming majority of the plaintiffs have accepted the AHS offer of employment; they now wish those contractual acceptances to be disregarded in favour of an arrangement that was not reached by agreement.

c) The absence of an undertaking in damages favours the respondent [ 62 ] Finally, since this is essentially an action with respect to money damages, the failure of the plaintiffs to provide an undertaking in damages, while not definitive, favours the respondent. Indeed, the plaintiffs assert that, if the respondent were to be successful in resisting their claim for an injunction, they would not expect to repay to the respondent any difference in the wages which they received relative to the salary to which they were entitled. [ 63 ] In

summary, on the third branch of the tri-partite test, the balance of convenience does not favour the applicants. Overall, the absence of an injunction will leave most of the applicants with contracts of employment which contracts will give them clear constitutional rights to associate for the purpose of bargaining and collective bargaining, if achieved, can have an easily calculable retroactive financial effect. However, the granting of an injunction will abrogate AHS’s right to manage its medical staff and its right to freely enter into, and be bound by, contracts. 4.

Assessed in its entirety, the situation here does not require the court to exercise its discretion in favour of awarding an interim interim injunction

[ 64 ] I agree with the plaintiffs’ position that the tri-partite analysis outlined in case law such as RJR-MacDonald does not establish watertight hurdles which must be leapt over serially; rather, the three areas of focus serve to guide courts in determining whether the granting of an injunction is warranted, i.e. whether it is just and equitable in all the circumstances. [ 65 ] In assessing the equities of the situation, as seen through the lens of the tri-partite test, the court concludes that the granting of an interim interim injunction is not warranted in the circumstances here. 5.

Costs [ 66 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the issuance of this decision. Heard on the 15 th day of December, 2015. Dated at the City of Edmonton, Alberta this 23 rd day of December, 2015. J.B. Veit J.C.Q.B.A. Appearances: James K. McFadyen, QC, and Jillanna Sehn Parlee McLaws LLP for the Applicants Duncan J.

Marsden, and Lorelle Binnon (Student-at-Law) Borden Ladner Gervais LLP for AHS APPENDIX A WHEREAS AHS is a. corporation constituted pursuant to the Regional Health Authorities Act (Alberta), AND WHEREAS AHS has the statutory responsibility to promote and protect the health of the population within Alberta and to ensure reasonable access to quality health services, AND WHEREAS AHS desires to retain the services of a qualified health care practitioner to provide clinical services, and the Contractor wishes to provide such services to AHS, NOW THEREFORE in consideration of the material advantages accruing to the parties herein, the parties agree as follows: 1.

TERM 1.1 The term of this Agreement (the " Term ") shall commence on November 1, 2013 , and continue until October 31, 2015 , unless earlier terminated or extended in accordance with the provisions of this Agreement. 1.2 If a party wishes to extend the term of this Agreement, written notice shall be provided to the other parties not less than ninety (90) days (or such other time period to which AHS and Contractor mutually agree) before the expiry date of the Term. The Agreement

may only be extended upon the written agreement of the parties. For the purposes of this Agreement, "Term" means the Initial Term and any extension term. 1.3 The Contractor acknowledges and agrees that this Agreement is based on the understanding that the contractor shall, following satisfactory completion of the Clinical/Surgical Program and at the request of AHS, provide a twenty-four (24) month service commitment to AHS. This service commitment commences on November 1, 2013 . . . . 3. FEES 3.1 (

a) Pursuant to the terms of this Agreement, and in consideration of the performance of the Services, AHS agrees to pay the Contractor the fees as outlined in

Schedule A.

Section C (the “ Fees ”). (

b) The Contractor shall deliver to AHS, to the address for notice for AHS set out in Subsection 11.1(a), a monthly invoice for the Services. (

c) All invoices shall contain at a minimum the following information: • invoice date; • name and address of Contractor; • description of work performed including dates performed; and • invoice amount, calculated using the rate(

s) outlined in Subsection 3.1(a). . . . 4. INDEPENDENT CONTRACTOR 4.1 In providing the Services, the Contractor is and shall remain at all times an independent contractor and the Contractor shall not represent itself to be an agent, officer or employee of AHS or as being related to AHS in any way other than as an independent contractor.

Nothing contained in this Agreement is intended to create nor shall be construed as creating the relationship of employer and employee, principal and agent, partnership, franchise or joint venture between the Contractor and AHS. 4.2 This Agreement does not prevent any of the parties from entering into other agreements to carry out any activity, provided that such other activities do not interfere with satisfactory performance of the Services. . . . 7. TERMINATION 7.1 This Agreement may be terminated:

a) at any time by mutual consent in writing of the Contractor and AHS;

b) by any of the parties giving sixty (60) days notice in writing to the other parties;

c) immediately by written notice from AHS to the Contractor if AHS determines that the Contractor is in breach of any material warranty or representation, or fails to fulfill any of its obligations, under this Agreement, and if such breach or failure continues for thirty (30} days after notice from AHS to remedy such breach or failure; or

d) immediately, on the recommendation of the Site Medical Director or Chief of Staff, for non-performance or unprofessional conduct on the part of the Contractor; or due to concerns over patient safety or quality of care as a result of the activities of the Contractor under this Agreement. Any recommendation made by the Site Medical Director or Chief of Staff is final and cannot be challenged. . . .

12. DISPUTE RESOLUTION . . . 12.2 Subject to any matters specifically excluded from arbitration, any dispute that remains unresolved after ten {10) days of the cessation of efforts at resolution under

Section 12.1 above, may be referred to arbitration by either party in accordance with the following requirements: (

a) the party seeking to initiate arbitration shall give written notice thereof to the other party and shall set forth a brief description of the matter submitted for arbitration; (

b) after receiving notice of arbitration, the parties shall have fifteen (15) business days to agree upon and, acting in good faith, appoint a single arbitrator. If the parties cannot agree on a single arbitrator they will each choose an arbitrator and those two arbitrators will choose an arbitrator who will conduct the arbitration; . . . 12.3 Any decision of AHS to terminate this Agreement in accordance with Subsection 7.1(

a) or (

b) shall not be subject to any form or manner of dispute resolution, including litigation and arbitration, and shall be final and binding. . . . B ACCOUNTABILITIES/DELIVERABLES Physicians who are contracted in the role of coverage provider for the . . . General Inpatient Medicine Services Program will be expected to provide the following: . . . . 2. Manage the medical care needs of . . .

General Inpatient Medicine Services patients in the SCH including but not limited to the following: • Assess patient progress and respond to the medical needs of these patients as they arise over the course of the shift. • Identify the patient's health care problems and develop a plan of care and problem list; • Document the assessment plan, intervention and evaluation of patient care in a progress note: • Interpret laboratory, radiological or other tests results in consultation with the appropriate attending physician; • Collaborate with patients and families, nurses, physicians and other health care professionals in the provision of care. • Dictation of discharge summaries if required under the guidance of the attending physician(s). 3.

The Contractor will respond in person to changes in patient condition or urgent medical needs as quickly as possible. Telephone response will be reserved for situations in which direct patient assessment is not required. 4. The Contractor will consult the designated attending physician as required and as appropriate to the needs of the patient during the delivery of the services.

Contact of the attending physician should always occur in the event of the following but is not limited to these events: a major change in the patient's condition; prior to all consultations or if any concern arises about the management of a problem. 5. The Contractor may be paged by any service within the SCH to provide urgent/emergent medical care until the attending or designate physician responds. . . . 10. Respond in a timely manner to any concerns received in the office of the Site Medical Lead from a patient, legal representative or family member about the care provided by the Contractor.

APPENDIX B January 22, 2014. Dear Clinical Assistant's and Clinical Surgical Assistant's Re: Notice of Intention to Continue as a Clinical Assistant/ Clinical Surgical Assistant in the Edmonton Zone As per the November 27, 2013 Provincial Meeting regarding Clinical Assistant/Clinical Surgical Assistant transition to an Employee Model you are being asked to indicate your intentions regarding acceptance of a position with AHS under the new Employee Model. The date for transition to employee positions in the Edmonton Zone is May 1, 2014 and a response indicating your intentions is required by February 15, 2014.

All Clinical Assistant and Clinical Surgical Assistant contracts will be terminated effective April 30, 2014. A formal notice of contract termination will be forthcoming to all Clinical Assistants and Clinical Surgical Assistants in the Edmonton Zone in February 2014. . . . Subsequent to the termination of my contract with Alberta Health Services it is my intention to: ​ Accept an offer of employment as a Clinical Assistant or Clinical Surgical Assistant within the Edmonton Zone. Formal offer letters will be provide in April 2014. ​ Not accept an offer of employment within the Edmonton Zone.

APPENDIX C Dear_______ Thank you for your letter dated June 2, 2015 regarding the Clinical Assistant Contract Extensions. I appreciate the opportunity to respond. As you are aware, Clinical Assistant negotiations have been elevated to discussions that are currently occurring between Alberta Health and the Alberta Medical Association and, as such, any decisions

regarding contract extensions will need to wait until those discussions are complete. Alberta Health Services (AHS) has extended all current contracts that have ended to July 31, 2015 and will continue to renew these contracts at the current terms and rates until such time that discussions between Alberta Health and the Alberta Medical Association are complete and further direction is provided. I trust that AHS has addressed the concerns that you have brought forward on behalf of the Clinical Assistants. Please contact me directly if you have any further questions or concerns regarding this matter.

APPENDIX D 7 Q. MR. MCFADYEN: In the discussions with AMA in relation to this negotiations framework, has Alberta Health Services recognized the representation by AMA of the clinical and clinical associates in that negotiation? 12 A. The clinical associates? 13 Q. Yes. 14 A. They're one of the three groups that I referenced 15 before, so I believe so. 16 Q. The clinical assistants? 17 A. Clinical assistants. 18 Q. Sorry. 19 A. No. 20 Q. And why is that? 21 A. Because of the lawsuit, actually. 22 Q. Okay. And how does this lawsuit affect AMA's ability 23 to represent the clinical assistants? 24 A.

The framework, you know, describes a particular 25 approach for those groups that are outlined, you know, 26 in there. When a group isn't mentioned in there, you 27 know, I imagine that there could be some discussion 1 about bringing them in retro - - or in - - going forward. 2 That would be the subject to mutual agreement, you 3 know, for them to bring the other framework. 4 Independent of that framework, it’s certainly possible

5 to negotiate, you know, in the way that negotiations 6 occurred in the past. 7 In the past what happened was that the Alberta 8 Health Services, you know, made an active choice, you 9 know, to allow the AMA or to - - well, I don’t know if 10 “allow” is the right word. But, you know, to work with 11 the AMA, you know, in the negotiation process with 12 physicians that they represented. APPENDIX E As you will be aware, you have entered into a Medical Services Agreement relating to your provision of services as a Clinical Assistant, to Alberta Health Services.

Each Medical Services Agreement had an expiry date but it is likely that your Medical Services Agreement may have been extended by Alberta Health Services, possibly on more than one occasion. This letter is to confirm that Alberta Health Services will not be extending your current Agreement. This means that your Agreement will end on December 31, 2015 , which is the contract expiry date contemplated in the Agreement.

The reason for this non-renewal is that Alberta Health Services will be moving to a new model for the Clinical Assistant position, which will be provided by employees, rather than consultants, going forward. The employee Clinical Assistant positions will' be filled by an open competition and we encourage all current Clinical Assistants to apply for such positions.

We anticipate posting the open competition to fill employee vacancies for Clinical Assistant/Surgical Clinical Assistant positions shortly and we encourage you to monitor the Alberta Health Services “Job Board” at www.albertahealthservices.ca to identify and apply for such an employment opportunity. For clarity, the contractual relationship that you have with Alberta Health Services as an independent contractor pursuant to the Agreement will not persist beyond December 31, 2015. APPENDIX F